Beard v. United States

June 9, 2006

JOHN BEARD, PETITIONER,v.UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Petitioner John Beard's request for a Certificate of Appealability, as noted in the Text Order entered May 31, 2006. This Court may only issue a certificate of appealability if Beard makes a substantial showing of a violation of his constitutional rights. 28 U.S.C. 2253(c); Fed. R. App. P. 22(b). To meet this standard, Beard must show that a reasonable jurist would find his constitutional claims that he wishes to raise on appeal to be debatable. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Beard raised three issues in his Petition: (1) his counsel was ineffective, (2) his sentence was based on false testimony concerning the quantity of drugs for which he should be held accountable, and (3) his rights to due process and trial by jury were violated because: (a) certain facts were not alleged in the Superseding Indictment, and (b) the Court determined his sentence based on a preponderance of the evidence presented at the sentencing hearing. 28 U.S.C. § 2244 Motion; And Memorandum of Law (d/e 1), Exhibit 1, Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence Under 28 USC § 2255 at 1-2. This Court denied relief on the first and third grounds, but granted an evidentiary hearing on the second ground. Opinion entered October 21, 2005 (d/e 8). After the evidentiary hearing, the Court allowed partial relief on the second ground and ordered a new sentencing hearing. Minute Entry entered February 28, 2006. Beard now wishes to appeal the Court's rulings on all three issues raised. A reasonable jurist would not find that any of this Court's rulings on the constitutional issues raised by Beard to be debatable. The Court therefore denies his request for a certificate of appealability.

THEREFORE, Petitioner Beard's request for a Certificate of Appealability is DENIED.

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